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Genocide: the Crime of the Century. the Jurisprudence of Death at the Dawn of the New Millennium

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Genocide: the Crime of the Century. the Jurisprudence of Death at the Dawn of the New Millennium LIPPMAN_PUBLICATION 5/11/2001 9:47 AM GENOCIDE: THE CRIME OF THE CENTURY. THE JURISPRUDENCE OF DEATH AT THE DAWN OF THE NEW MILLENNIUM Matthew Lippman* I. THE UNITED NATIONS ..................................................... 469 A. The Need for a Binding International Convention .. 469 B. The Genocide Convention ......................................... 471 C. Reform of the Genocide Convention.......................... 484 II. ADDITIONAL DEVELOPMENTS .......................................... 489 A. The International Court of Justice ........................... 489 B. The Eichmann Trial ................................................. 492 C. The Vietnam War...................................................... 495 III. THE INTERNATIONAL CRIMINAL TRIBUNALS FOR YUGOSLAVIA AND RWANDA .............................................. 497 A. The International Criminal Tribunal for the Former Yugoslavia ................................................... 497 B. The International Criminal Tribunal for Rwanda.. 507 IV. THE INTERNATIONAL COURT OF JUSTICE ........................ 511 A. Bosnia and Herzegovina I ........................................ 511 B. Bosnia and Herzegovina II....................................... 514 C. Nuclear Weapons ...................................................... 515 V. RECENT DEVELOPMENTS ................................................. 517 * Professor, Department of Criminal Justice, Affiliate Member, Departments of Political Science and German, University of Illinois at Chicago. Ph.D. Northwestern University, J.D. American University, LL.M. Harvard University. Much of this research was undertaken in conjunction with the author’s involvement in genocide cases in the International Court of Justice on behalf of Bosnia in its suit against Yugoslavia (Serbia & Montenegro) and the Chechen Republic in its suit against Russia. 467 LIPPMAN_PUBLICATION 5/11/2001 9:47 AM 468 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 23:3 A. The Extradition of Augusto Pinochet ....................... 517 B. The New International Criminal Court ................... 521 VI. THE FUTURE OF GENOCIDE PROSECUTIONS .................... 523 A. The Inadequacy of the Genocide Convention............ 523 B. Genocidal Intent ....................................................... 525 C. A Victimless Crime ................................................... 526 D. Genocide Trials......................................................... 530 E. Reconceptualizing Genocide ..................................... 532 VII. CONCLUSION.................................................................... 534 The twentieth century was terrorized by the terrible triad of nationalism,1 communism2 and totalitarianism.3 There were considerable costs. Substantial portions of various ethnic, racial and religious groups were exterminated in the service of these higher callings.4 In the last decade, the decline of communism and the transcendence of totalitarianism, rather than alleviating atrocities, has unleashed ancient animosities which threaten to further fracture and splinter the territorial integrity of many states.5 This article traces the international legal response to a century of global genocide. Initially, the development of the concept of genocide is discussed. Next, the doctrine’s application and refinement in post-World War II war crimes trials is traced. In the next section, the drafting of the 1948 Convention on the 1 See BRANMIR ANZULOVIC, HEAVENLY SERBIA: FROM MYTH TO GENOCIDE 175 (1999) (calling President Slobodan Milosevic “the man who used nationalism to gain power and lead [Serbia] into war”). Id. 2 See STÉPHANE COURTOIS ET. AL., THE BLACK BOOK OF COMMUNISM: CRIMES, TERROR, REPRESSION 1–2 (1999). “The fact remains that our century has outdone its predecessors in its bloodthirstiness. Communism has its place in this historical setting overflowing with tragedies.” Id. 3 See generally HENRY FRIEDLANDER, THE ORIGINS OF NAZI GENOCIDE: FROM EUTHANASIA TO THE FINAL SOLUTION 1–22 (1995). 4 It has been claimed recently that communist regimes were responsible for many more than the twenty-five million deaths attributable to the Nazis. See Martin Malia, Foreword to COURTOIS, supra note 2, at x–xi. 5 See generally HUMAN RIGHTS WATCH, SLAUGHTER AMONG NEIGHBORS THE POLITICAL ORIGINS OF COMMUNAL VIOLENCE 1, 2 (1995). LIPPMAN_PUBLICATION 5/11/2001 9:47 AM 2001] GENOCIDE: THE CRIME OF THE CENTURY 469 Prevention and Punishment of the Crime of Genocide is sketched. This is followed by a discussion of the evolution of the law of genocide in the Eichmann trial, Vietnam War and in the decisions of the Yugoslav and Rwandan war crimes tribunals and International Court of Justice. The article concludes with various observations on the legal efforts to deter and punish genocide. I. THE UNITED NATIONS A. The Need for a Binding International Convention In 1946, the General Assembly passed a resolution that proclaimed that genocide was the deprivation of a group’s right to exist in the same fashion that homicide was the denial of an individual’s right to exist.6 Acts of genocide were viewed as having resulted in a great loss to humanity in terms of culture and other possible contributions.7 This form of mass murder was described as constituting a shock to the conscience of mankind and was considered contrary to moral law and the spirit of the United Nations Charter.8 The resolution observed that racial, religious, and political groups had been the particular target of genocide and had been destroyed in whole or in part, and that such atrocities were of international concern.9 This text limited genocide to physical extermination, but stressed the resulting cultural loss to the human family.10 The resolution also noted that such instances of mass murder were violative of moral norms that transcended national boundaries.11 The resolution also suggested that the loss resulting from genocide did not merely lie in the number of individuals who were killed.12 In addition, there was the suggestion that a group, like an 6 G.A. Res. 96 (I), U.N. GAOR 1st Sess., pt. 2, 55th plen. mtg., at 188, U.N. Doc. A/64/Add.1 (1946). 7 Id. at 189. 8 Id. at 188–89. 9 Id. at 189. 10 See id. 11 G.A. Res. 96 (I), U.N. GAOR 1st Sess., pt. 2, 55th plen. mtg., at 189, U.N. Doc. A/64/Add.1 (1946). 12 See id. LIPPMAN_PUBLICATION 5/11/2001 9:47 AM 470 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 23:3 individual, is distinctive and unique and has a right to exist and to prosper.13 The eradication of a collectivity deprives the world community of an irreplaceable part. 14 In the main body of the resolution, the General Assembly affirmed that genocide is a crime under international law which the civilized world condemned and which carried criminal liability, whether committed by private individuals or public officials.15 It was an offense whether undertaken on religious, racial, political, or any other grounds.16 The latter was an unprecedented affirmation by an international body that genocide was an international offense regardless of the animus motivating the act.17 States were invited to enact the necessary legislation for the prevention and punishment of genocide.18 The Economic and Social Council was requested to draw up a draft convention that was to be submitted to the General Assembly.19 In 1947, the Sixth Committee considered the merits of adopting an international convention on genocide. The Sixth Committee Resolution was resolutely rejected by the United Nations General Assembly.20 A Cuban, Egyptian, and Panamanian draft, as amended by China, was adopted by a vote of thirty-four to fifteen with two abstentions.21 General Assembly Resolution 180(II) provided, in part, that the Economic and Social Council should “continue the work it has begun concerning the suppression of genocide” and should “proceed with the completion of a convention.”22 A Chinese amendment attempted to accommodate the British and Soviet views by 13 See id. 14 See id. 15 Id. 16 Id. at 188. 17 G.A. Res. 96 (I), U.N. GAOR 1st Sess., pt. 2, 55th plen. mtg., at 188, U.N. Doc. A/64/Add.1 (1946). 18 Id. 19 Id. 20 G.A. Res. 174 (II), U.N. GAOR 2d Sess., 123d plen. mtg., at 1283, U.N. Doc. A/510 (1947). 21 See id. at 1305–06. 22 G.A. Res. 180 (II), U.N. GAOR 2d Sess., at 129–30, U.N. Doc. A/519 (1947). LIPPMAN_PUBLICATION 5/11/2001 9:47 AM 2001] GENOCIDE: THE CRIME OF THE CENTURY 471 providing that the Council should take into account the work of the International Law Commission which had been “charged with the formulation of the principles recognized in the Charter of the Nuremberg Tribunal, as well as the preparation of a draft code of offenses against peace and security.”23 The International Law Commission was content to defer to the Economic and Social Council and the Sixth Committee.24 The Commission’s formulation of the Nuremberg Principles restricted crimes against humanity to acts undertaken during, or in connection with, a crime against peace and declined to define or discuss the relationship between crimes against humanity and genocide.25 B. The Genocide Convention The General Assembly, at its 179th meeting on December 9, 1948, unanimously adopted the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention” or the “Convention”).26 The President of the General Assembly, Mr. H.V. Evatt of Australia, declared that “the supremacy of international law had been proclaimed and a significant advance had been made in the development of international law.”27 This had resulted in the
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